REED

v.

COMMISSIONER OF SOCIAL SECURITY

The Plaintiff seeks judicial review of the Commissioner’s denial of her claims for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). For the reasons discussed below, the Commissioner’s decision is reversed, and the case is remanded.

I.

The Plaintiff was born in 1969, earned her GED, and has past relevant work experience as a hospital cleaner and an order picker/store laborer. (R. 792, 814, 891). The Plaintiff applied for DIB and SSI in September 2013, alleging disability as of

At the Plaintiff’s request, an Administrative Law Judge (ALJ) conducted a hearing on the matter in July 2015. (R. 52–78). The Plaintiff was represented by counsel at that hearing and testified on her own behalf. (R. 56–69). A vocational expert (VE) also testified. (R. 69–77). In September 2015, the ALJ issued a decision in which he found the Plaintiff was not disabled. (R. 833–45). That decision was reversed on appeal, however, with the instruction that—on remand—the ALJ reevaluate the Plaintiff’s visual limitations and conduct any further proceedings as necessary. (R. 927–36). Meanwhile, in March 2017, the Plaintiff filed additional applications for DIB and SSI. (R. 778, 1075–80). At the direction of the Appeals Council, the ALJ consolidated these later applications with the earlier ones, associated the evidence, and conducted a hearing on the combined applications in February 2019. (R. 808–29, 1022). At that hearing, the Plaintiff was again represented by counsel and again testified on her own behalf. (R. 813–20). A VE also testified. (R. 820–29). In April 2019, the ALJ issued a second decision in which he found that the

Plaintiff: (1) met the insured status requirements through December 31, 2018, and had not engaged in substantial gainful activity since her alleged onset date of August 2013; (2) had the severe impairments of anxiety, depression, hypothyroidism, degenerative disc disease, degenerative joint disease, and blindness in her left eye; (3) did not, however, have an impairment or combination of impairments that met or medically equaled the severity of any of the listed impairments; (4) had the residual functional capacity (RFC) to perform light work with certain limitations, including—of relevance here—that she could only stand or walk for approximately six hours out of an eighthour day;² and (5) based on the VE’s testimony, could not engage in her past relevant work but was capable of making a successful adjustment to other jobs that exist in significant numbers in the national economy. (R. 778–93). In light of these findings, the ALJ concluded that the Plaintiff was not disabled. (R. 793).

The Appeals Council denied the Plaintiff’s request for review. (R. 766–68). Accordingly, the ALJ’s decision became the final decision of the Commissioner. II. The Social Security Act (the Act) defines disability as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a).3 A physical or mental impairment under the Act “results from anatomical, physiological, or psychological abnormalities which are

404, Subpart P, Appendix¹; (4) has the RFC to engage in her past relevant work; and (5) can perform other jobs in the national economy given her RFC, age, education, and work experience. Id. (citing Phillips v. Barnhart, 357 F. 3d 1232, 1237 (11th Cir. 2004); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)). Although the claimant has the burden of proof through step four, the burden temporarily shifts to the Commissioner at step five. Goode v. Comm’r of Soc. Sec., 966 F. 3d 1277, 1279 (11th Cir. 2020) (quoting Hale v. Bowen, 831 F. 2d 1007, 1011 (11th Cir. 1987)); Sampson v. Comm’r of Soc. Sec., 694 F. App’x 727, 734 (11th Cir. 2017) (per curiam) (citing Jones v. Apfel, 190 F. 3d 1224, 1228 (11th Cir. 1999)). If the Commissioner carries that burden, the claimant must then prove that she cannot engage in the work identified by the Commissioner. Goode, 966 F. 3d at 1279. In the end, “the overall burden of demonstrating the existence of a disability . . . rests with the claimant.” Washington v. Comm’r of Soc. Sec.,

Human Servs., 21 F. 3d 1064, 1066 (11th Cir. 1994)).

III.

The Plaintiff’s sole challenge on appeal is that the ALJ erred by adopting a stand/walk restriction recommended by one state agency consulting physician over that recommended by another, even though the ALJ assigned “great weight” to the broader opinions offered by both physicians regarding the Plaintiff’s RFC, among other issues. (Doc. 20 at 6–10). The Commissioner counters that the ALJ properly applied the governing legal principles and that his decision is adequately buttressed by the record. Id. at 10–18. After a thorough review of the pertinent evidence and the parties’ submissions, the Court finds that reversal and remand are warranted. As noted above, at step four of the sequential evaluation process, the ALJ must determine the claimant’s RFC and her ability to perform her past relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545. To do so, an ALJ “must consider all medical opinions in a claimant’s case record, together with other relevant evidence.” McClurkin v. Soc. Sec. Admin., 625 F. App’x 960, 962 (11th Cir. 2015) (per curiam) (citing 20 C.F.R. § 404.1527(b)); see Jamison v. Bowen, 814 F. 2d 585, 588 (11th Cir. 1987) (stating that the “ALJ must consider the applicant’s medical condition taken as a whole”). Medical opinions are statements from physicians or other acceptable medical sources “‘that reflect judgments about the nature and severity of [the claimant’s] impairment(s), including [the claimant’s] symptoms, diagnosis and prognosis, what [the claimant] can still do despite [her] impairment(s), and [the claimant’s] physical or mental restrictions.’” Winschel v. Comm’r of Soc. Sec., 631 F. 3d 1176, 1178–79 (11th Cir. 2011) (quoting 20 C.F.R. §§ 404.1527(a)(2)), 416.927(a)(1)). In weighing a medical opinion, an ALJ must take into account: (1) whether the physician has examined the claimant; (2) the length, nature, and extent of the physician’s relationship with the claimant; (3) the medical evidence and explanation supporting the physician’s opinion; (4) the degree to which the physician’s opinion is consistent with the record as a whole; and (5) the physician’s area of specialization. 20 C.F.R. §§ 404.1527(c), 416.927(c); see also Hand v. Soc. Sec. Admin., Comm’r, 786 F. App’x 220,

224 (11th Cir. 2019) (noting that these factors apply regardless of the type of physician at issue).⁵ While an ALJ is required to consider each of these factors, he is not obligated to address them explicitly in his decision. Lawton, 431 F. App’x at 833. The Regulations set forth three tiers of medical opinions: (1) treating physicians; (2) non-treating, examining physicians; and (3) non-treating, non-examining physicians. Himes v. Comm’r of Soc. Sec., 585 F. App’x 758, 762 (11th Cir. 2014) (per curiam) (citing 20 C.F.R. §§ 404.1527(a)(2), (c)(1)–(2); id. at § 416.927(c)(1)-(2)). Treating physicians’ opinions are accorded the most weight because there is a greater likelihood that these healthcare providers will “be able to give a more complete picture of the [claimant’s] health history.” Schink v. Comm’r of Soc. Sec., 935 F. 3d 1245, 1259 (11th Cir. 2019) (per curiam) (citing 20 C.F.R. § 404.1527(c)(2)). The opinion of a one-time examining physician, on the other hand, is afforded to less weight, Crawford, 363 F. 3d at 1160 (citing McSwain v. Bowen, 814 F. 2d 617, 619 (11th Cir. 1987)), and the opinion of a non-examining physician is generally entitled to the least deference.

Huntley v. Soc. Sec. Admin., Comm’r, 683 F. App’x 830, 832 (11th Cir. 2017) (per

The undersigned affords great weight to the conclusions of Dr. Molis and Dr. Arkin[ ]. Dr. Molis and Dr. Arkin reviewed all the available evidence. Both cited to medical findings in making [their] determination.

(R. 791) (citations omitted). Ultimately, without any further explanation, the ALJ found that the Plaintiff could stand or walk for approximately six hours out of an eighthour day, thus appearing to adopt Dr. Arkin’s stand/walk assessment. (R. 782). After careful review, the Court agrees with the Plaintiff that the ALJ’s decision to accord substantial deference to the “conclusions” of both Dr. Moils and Dr. Arkin, without identifying those findings with specificity, constituted error. While the ALJ did not have to refer to every piece of evidence in the record, Dyer, 395 F. 3d at 1211, the Court requires further detail due to the contradictory nature of Dr. Molis and Dr. Arkin’s proposed standing and walking limitations and the ALJ’s assignment of great weight to both. Simply put, absent clarification from the ALJ as to which portions of Dr. Molis and Dr. Arkin’s respective reports the ALJ chose to credit and why, the Court is unable to “follow[, or even discern,] the [ALJ’s] reasoning.” Hand, 786 F. App’x at 224; see also 20 C.F.R. § 404.1527(f)(2). This is especially true given that Dr. Molis’ assessment the Plaintiff could only stand/walk for a total of two hours in an eight-hour workday was an “obviously probative exhibit,” insofar as it contravenes the ALJ’s RFC finding. Cowart v. Schweiker, 662 F. 2d 731, 735 (11th Cir. 1981). Absent clearly articulated grounds for rejecting that aspect of Dr. Molis’ opinion, the Court cannot determine whether the ALJ’s findings at steps four and five are rational and supported by substantial evidence.⁸ See id.; see also Simon v. Comm’r, Soc. Sec. Admin., No. 19-14682, __ F. 4th __, 2021 WL 3556433, at *8 (11th Cir. Aug. 12, 2021) (“It is the responsibility of the agency, not the reviewing court, to supply the justification for its decision and to sufficiently explain ‘the weight [it] has given to obviously probative exhibits.’”) (quoting Cowart, 662 F. 2d at 735). The lack of clarity on this matter is particularly troubling given that the ALJ appears not to have sufficiently addressed potential issues with Dr. Arkin’s opinion despite affording it “great weight.” The Court’s review of Dr. Arkin’s stand/walk limitation suggests that it may not be based on “all the available evidence,” as the ALJ believed it to be. By way of example, Dr. Arkin stated in his RFC assessment form that the records he analyzed contained a medical source statement regarding the

Plaintiff’s physical capabilities (which is possibly a reference to Dr. Molis’s report) but that such report did not significantly differ from his findings. (R. 1653). It is difficult to see how this statement is accurate since Dr. Molis’s greater limitations on the Plaintiff’s ability to stand or walk directly conflict with those of Dr. Arkin. The implication is that Dr. Arkin did not consider—or may not even have been aware of—

Dr. Molis’s elevated stand/walk restrictions.

IV.

For the foregoing reasons, it is hereby ORDERED: 1. The Commissioner’s decision is reversed. 2. The Clerk of Court is directed to enter Judgment in the Plaintiff's favor and to close the case. 3. The Court reserves jurisdiction on the matter of attorneys’ fees and costs pending a further motion pursuant to Local Rule 7.01. SO ORDERED in Tampa, Florida, this 30th day of August 2021.

ON reartvgasy Ack

HONORABLE CHRISTOPHER P. TUITE

United States Magistrate Judge Copies to: Counsel of record